Positions on the rights of migrants in an irregular situation.
Position Paper from the Council of Europe Commissioner for Human Rights. 
This is a collection of Positions on the rights of migrants in an irregular situation from the Council of Europe Commissioner for Human Rights. It is a short summary of the findings of the Commissioner based on his country-monitoring and thematic reports, issue papers, recommendations, opinions and viewpoints. By collating these findings drawn from the different components of his work, the Commissioner presents a summary of his conclusions and recommendations concerning the rights of migrants in an irregular situation.. The Positions will be continuously updated in the further light of the Commissioner’s ongoing work.
Though precise statistics are not available, for obvious reasons, it is estimated that there are more than 5.5 million irregular migrants within the European Union, and more still in other parts of Europe. In the Russian Federation it is estimated that there are no less than 8 million.
These foreigners are not criminals; they are guilty only of having aspired to a better life, a job or, in the saddest and most distressing cases, protection from persecution.

Key Recommendations:

• All migrants have human rights and these should be respected. The general rule is that rights should be guaranteed without discrimination between citizens and foreign nationals. European minimum standards encompass a broad range of civil, political, social and economic rights.
• Member states should accede to the 1977 European Convention on the Legal Status of Migrant Workers and to the International Convention on the Protection of All Migrant Workers and Members of Their Families.
• Measures to control the entry of non-nationals, and prevent irregular border crossing must be compatible with the prohibition on inhuman and degrading treatment and punishment, and with the right to life.
• Reception procedures need more resources, adequately trained border police and clear, human-rights-based policies in order to function effectively and humanely. Accommodation facilities, food and living conditions provided to migrants must meet basic standards of decency. It is also essential that migrants have access to necessary health care.
• Irregular entry or stay should not be regarded as a criminal offence nor treated as such or as an aggravating circumstance for non-related offences.
• No one should be subject to detention of any kind on the sole basis that he or she is not a national. As a matter of principle, no person seeking international protection should be subject to detention.
• Detention should be used only as a last resort, judicially authorised, and not exceed a reasonable period of time. In addition, the use of pre-deportation detention should be restricted to situations where it is clear that the deportation can in fact take place in the immediate future. In relevant cases, authorities should find alternative solutions to confinement for indefinite periods.
• Rather than prison-style facilities, detention centres for migrants should maintain a more open approach, with cells and common spaces open during the day. Detainees should also have regular access to means of communication and be able to receive visits; they should receive accurate information about their situation and possibilities for release. In the event that they are detained for several weeks, they should have access to meaningful activities such as sport and vocational training.
• The prohibition on cruel, inhuman and degrading treatment is absolute and applies to all varieties of custodial settings: transit and international zones at airports, police stations, prisons and specialised detention centres. Detainees held in airport lounges should be provided with suitable sleeping space, access to their luggage, to open air spaces for exercising, washing facilities, food and medical care.
  Refoulement of a refugee or a migrant to a situation of persecution, or to a situation where there is a real risk of ‘irreparable harm’, such as killing or torture, in any country of subsequent removal, must be prohibited. Individuals must be given sufficient time to apply for asylum, and countries must thoroughly examine the safety of a state with respect to the individual situation of a deportee.
• Member states should effectively abide by Protocol No 4 to the European Convention on Human Rights which prohibits collective expulsion of foreign nationals. Member states that have not as yet done so should promptly ratify this Protocol.
• Removal should be avoided when it would sever an individual’s strong family or social ties with the receiving country.
• There must be opportunities to challenge a removal order before a competent authority or body composed of members who are impartial and who enjoy safeguards of independence: preferably a court. These appeals should have a suspensive effect when the returnee has an arguable claim that the removal order could lead to a real risk of the death penalty, torture or inhuman or degrading treatment or punishment.
• Legal proceedings must offer all procedural guarantees, including effective access to legal assistance and representation and the right to an interpreter.
• Forced returns and arrests must be carried out with complete transparency and respect for fundamental human rights at all stages. The use of force, medication or restraint must be strictly regulated and monitored. No arrests should be conducted in schools or administrative offices. Furthermore, all actors responsible for deportations or dealing with immigration issues should receive thorough training in applicable human rights standards.